Evidence

Question 1

Is the Evidence Relevant under FRE 401?

Answer 1

Q: does it make the existence of any fact or consequence more or less probable?

• If NO it is not admissible
• If YES then continue analysis

Question 2

Is the evidence excludable under FRE 403?

Answer 2

Q: is its probative value substantially outweighed by:

(1) Danger or Prejudice
(2) Volume
(3) Undue delay in trial to introduce evid
(4) Confusion of Issues
(5) Evid may mislead jury
(6) Wasting time/cumulative evidence
(7) Conditional relevancy

• If YES it is excludable
• If NO then continue analysis

Question 3

Is the evidence relevant BUT specifically excluded by the FRE?

SUBSEQUENT REMEDIAL MEASURES

Answer 3

-excluded to prove Neg or culpable conduct but admissible to show ownership, control, concealment or destruction of evidence. Also it is admissible to rebut a claim that precautionary measures were not feasible and to prove that the opposing party has destroyed evidence.

NY Distinction–in a manufacturing defect case, sub remedial measures are admissible to est defectiveness of product when made

CONTRAST: in a design defect or failure to warn case, post-manufacture modifications admissible only to defeat the manufacturer’s claim that at the time of the manufacture, such modifications were not feasible. Even if the manufacturer concedes feasibility, the evidence of modification is inadmissible.

Question 4

Is the evidence relevant BUT specifically excluded by the FRE?

OFFERS TO COMPROMISE

Answer 4

Offers to compromise in a civil case excluded to prove L and cant be severed from admission (ex party admits L and the amount of L but offers to settle for a letter amount). There must be a claim and it must be disputed as to validity or amount.

Question 5

Is the evidence relevant BUT specifically excluded by the FRE?

OFFERS TO PAY FOR MEDICAL/SIMILAR EXPENSES

Answer 5

excluded to prove L and may be severed from an admission

Question 6

Is the evidence relevant BUT specifically excluded by the FRE?

PLEA NEGOTIATIONS

Answer 6

(ie withdrawn G plea and offers to plead G) excluded in crim case

Question 7

Is the evidence relevant BUT specifically excluded by the FRE?

LIABILITY INS

Answer 7

excluded to prove fault or ability to pay BUT ADMISSIBLE to prove witness is agent, ownership, control, bias or prejudice

Question 8

Is the evidence relevant BUT specifically excluded by the FRE?

RAPE SHIELD

Answer 8

exclude evidence of V’s prior sexual conduct EXCEPT to prove that a person other than the D was the source of the semen, injury or other physical evidence.

Also ADMISSIBLE are prior sexual encounters with D to prove consent

NY Distinction: eff 11/1/94 evidence of V’s dress at time of rape inadmissible UNLESS ct finds that it is relevant and admissible in the interests of justice–ct must give its findings of fact essential to the determination.

NY Distinction: a prompt declaration of rape is an exception to the hearsay rule and can be testified to in ct for the truth of the rape (date rape, spousal rape).

Question 9

If the Evidence is Real (physical objects not assertions made by witness)

Answer 9

1) has it been authenticated?–achieved by direct proof or chain of custody. It can be avoided by stipulation, written request for admission or testimony of a witness with knowledge. Real evidence can also be self-authenticating: some documents are what they purport to be by the proponents, so there is no need for extrinsic evidence of authenticity

• If NO excludable
• If YES does it comply with the BEST EVIDENCE RULE (FRE 1002)?

Question 10

If real evidence is authenticated does it comply with BEST EVIDENCE RULE?

Answer 10

to prove the terms of a writing (including recordings, photos, x-rays) that is a legally operative or dispositive instrument (ie K or deed) or the knowledge of a witness concerning a fact that results from having read the document, the orig writing must be produced.

Secondary evidence (testimony or copies) are only admissible if the orig is unavailable (lost or destroyed in good faith, in the possession of a third party, in another jurisdiction, not obtainable, or in the possession of an adversary).

NOTE: duplicated (extra copy) are admissible in fed ct, unless (i) the authenticity of the orig is challenged, or (ii) under the circumstances, it would be unfair to admit the duplicate in place of the original (FRE 1003)

Question 11

Best Evidence Rule does NOT apply when:

Answer 11

(1) the facts to be proved exist independently of any writing
(2) where the writing is collateral to the litigated issue
(3) to summarize voluminous records, or
(4) public records

Question 12

If TESTIMONIAL evid is offered on direct exam, is the evid HABIT?

Answer 12

Habit is the regular response of an individual (conduct) to a repeated situation, absent deliberation. This evidence is always admissible.

NY Distinction–NY qualifies habit admissability to when the party was in:

(1) complete and exclusive control of the circumstances
(2) the act was deliberate, AND
(3) repetitive

*in NY Neg cases evidence of habitual due care is excluded for the reason that it raises too many collateral issues.

Question 13

If TESTIMONIAL evid is offered on direct exam, is the evid CHARACTER?

Answer 13

Character evid is only admissible on direct in the following situations:

CIVIL Proceeding–not admissbale except for:

(i) Defamation
(ii) Parent’s character in custody battle
(iii) Mental condition of testator in a will
(iv) Negligent entrustment/Negligent hiring
(v) animal’s vicious propensity
(vi) self defense raised
(vii) where party puts her own character in issue

CRIMINAL Proceeding–prosecutor may introduce evid of D’s character on the direct case in the following situations:

(i) D contends he was not the first aggressor in homicide or assault
(ii) D raises defense of entrapment
(iii) State can show past conduct to prove MIMIC PO (Motive, Intent, knowledge or absence of Mistake, Identity, Common plan or scheme, Preparation, Opportunity).

Question 14

Methods of proving CHARACTER

Answer 14

(1) Reputation or Opinion–in all cases in which evid of character is admissible, proof may be made by testimony as to reputation or in the form of an opinion. On cross-exam, inquiry is allowable into relevant specific instances of conduct.
(2) Specific Instances of Conduct–in cases in which character or trait of character is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person’s conduct.

Question 15

OPINION Evidence–Lay Opinion

Answer 15

Opinion is an inference or conclusion drawn from facts derived from first-hand knowledge or observation. The facts are the basis for the inference or conclusion drawn.

LAY Opinion–non-expert. can render an opinion as to what they observe w their senses and is within common understanding. Opinion testimony is generally admissible when:

(i) it is rationally based on the perception of the witness AND (ii) it is helpful to a clear understanding of her testimony or to the determination of a fact in issue.

EX:

• re a person’s general appearance
• re person’s emotional state
• re sense recognition
• re speed of car
• re intoxication
• re sanity
• re handwriting
• re voice identification

Question 16

OPINION Evidence–Expert Opinion

Answer 16

Opinions of Experts Admissible when:

(1) the subject matter is one where the expert’s testimony would assist the trier of fact;
(2) the testimony is based on matters upon which the expert might reasonably rely, and
(3) the expert is qualified on the subject

Opinion on Ultimate Issues: under fed rules an expert may render an opinion as to the ultimatre issue in the case. However, a crim case in which D’s mental state constitutes an element of the crime or defense, an expert may not, under fed rules, state an opinion as to whether the accused did or did not have the mental state in issue.

NY Distinction–the rule supports the ultimate issue of guilt or innocence, therefore an expert can render an opinion of sanity.

Question 17

5 methods to Impeach a witness–CHARACTER OR CONDUCT OF WITNESS

Answer 17

(1) Character or Conduct of witness as to trait of truthfulness.
- any questions on criminal, viscous or immoral conduct (“bad acts”) is allowed other than asking if the witness was arrested, if it affects character and shows the wintess to be unworthy of belief. However, the examiner is bound to the answer and cannot prove the witness lied except through the introduction of a record of conviction of a felony or a crime involving dishonesty or false statement that is less than 10 yrs old.

-there is a balancing test re the intro of record of a felony convicion not involving dishonesty
TEST: probabitve value substantially outweighed by unfair prejudice
APPLICATION: when D is the witness, exclusion is favored; with any other witness, inclusion is favored.

-Rebuttal of the witness’ character can only be in the form of either reputation or opinion and not address any specific conduct of the witness.

NY Distinction: a rebuttal of the witness may only be called for impeachment pruposes by testifying to bad community reputation for truth, but may not render an opinion as to character or testify to specific examples.

Question 18

5 methods to Impeach a witness–PRIOR INCONSISTENT STMT

Answer 18

FILL IN

Question 19

5 methods to Impeach a witness–BIAS

Answer 19

• Evid that a witness is biased or has an interest in the outcome of a suit tends to show the witness has a motive to lie.
• a witness may always be impeached after a proper foundation has been laid by extrinsic evidence of bias or interest. Most cts require person impeaching must ask about the facts impeaching witness on cross-exam. If witness on cross admits the facts claimed to show bias, it is within the judge’s discretion to decide whether extrinsic evidence may be introduced as further proof of bias or interest. Evidence that is substantively inadmissible may be admitted for impeachment purposes if relevant to show bias or interest.

Question 20

5 methods to Impeach a witness–PRIOR DEFECTS IN WITNESS’ CAPACITY

Answer 20

no additional notes

Question 21

5 methods to Impeach a witness–MATERIAL FACTS DIFFERENT FROM WHAT WITNESS SAID

Answer 21

no additional notes

Question 22

Does the witness on direct/cross have a faulty recollection?

Answer 22

• If NO then witness is competent to testify provided they observed the event, can remember the event, and can testify about it.
• If YES the witness is not competent unless their memory is prompted through either: (1) past recollection recorded OR (2) present recollection refreshed.

Question 23

Is the evid PRIVILEGED by the existence of one of the following relationships?

Answer 23

(1) Atty/client
(2) Marital
(3) Clergy
(4) MD/Patient
(5) Privilege against self-incrimination

• if YES it is excludable (if real evidence write ans)
• if NO and testimonial evid, then continue…

Question 24

Is the Evid HEARSAY?

Answer 24

rule excludes as evidence verbal and written statements or non-verbal conduct intended as an assertion that the declarant didn’t make while testifying in the current court proceeding and are being offered in court for the purpose of establishing the truth or falsity of the facts asserted in the out of court statement.

Question 25

Non-Hearsay (FRE 801)

Answer 25

(1) Prior Stmt of Witness:
- prior inconsistent stmts
- prior consistent stmts
- prior eyewitness IDs

(2) Party’s Stmts
- opposing party
- adoptive
- vicarious
- co-conspirator

(3) Legally Operative Facts (words with legal or independent significance)

Question 26

Exceptions to Hearsay Rule where Declarant’s Availability is Immaterial (FRE 803)

Answer 26

(1) 6 important ones
- present sense impressions
- excited utturance
- state of mind
- Medical Dx or Treatment
- Past recollection recorded
- Business records

(2) less important ones
- public records
- vital statistic records
- no public record of juris
- records of religious orgs
- cert of marriage or baptism
- family records
- records of documents affecting property
- stmts in documents affecting property
- ancient documents
- market reports
- learned treatises
- previous convictions

Question 27

Hearsay Exceptions where Declarant must be Unavailable

Answer 27

(1) Former testimony
(2) dying declaration
(3) declaration against interest
(4) Stmt of personal or family hx
(5) stmt against party that wrongfully caused declarant’s unavailability

Declarant unavailable if:

(1) Dead/mentally defective
(2) outside of cts juris
(3) invokes privilege
(4) refuses to testify
(5) witness cannot remember
(6) party against whom evidence is introduced is responsible for unavailability of witness

Question 28

Note on Opposing Party Stmts

Answer 28

Rule: An admission by silence is admissible if:

(1) stmt is heard
(2) stmt is understood
(3) subject matter is within knowledge of the listener; AND
(4) the stmt is such that it would call for denial under the circumstances. Post-arrest silence may never be used as an admission, but per-arrest silence may.

Question 29

Dead Man’s Statute

Answer 29

1) Upon TRIAL or HEARING
- applies only to trial/hearing in which the merits will be decided
- no limitation on ct or proceeding

2) An INTERESTED WITNESS
- person “interested” if he stands to directly gain/lose by judgment
- an adverse party to the protected party is ALWAYS an interested party

3) Mat NOT TESTIFY on his OWN BEHALF
4) AGAINST a PROTECTED PARTY

5) As to ANY PERSONAL TRANSACTION or communucation with the decedent or INCOMPETENT PERSON
- “transaction” broadly defined as doing/performing some business btw parties, or the mgmt of any affair.

6) UNLESS the protection be WAIVED
- if protected party calls interested party to testify
- If protected party fails to make a timely objection to COMPETENCY of the witness
- If an agent of the protected party testifies to a transaction w an interested person
- If testimony of a protected party given at the former trial/deposition is read into evidence

Question 30

Dead Man’s Statute–Accident Exception

Answer 30

An interested party may testify as to the FACTS OF AN ACCIDENT or any facts resulting from the accident when the proceeding, hearing, defense or cause of action involves a claim of Neg or contributory Neg. Remember any testimony as to conversations with the deceased person is still prohibited.

Question 31

Dead Man’s Statute–Elements/Application

Answer 31

Applicable to Civil cases ONLY

• actions for money
• Actions against an estate

Purpose

• to prevent unfairness in the decedent’s interest
• avoid possibility of perjury

Question 32

Recollection Recorded (FRE 803(5))

Answer 32

(1) Witness lack full recollection of the event
(2) A writing may be used to revive recollection
(3) An accurate writing of which the witness has personal knowledge made while the memory was fresh in the mind or memory of the witness may be shown to the witness
(4) the writing may be read into evidence, once attested to for accuracy

Question 33

Writing to Refresh (FRE 612)

Answer 33

(1) Witness lacks full recollection of the event
(2) A writing may be used to refresh recollection
(3) any writing may be shown to witness to prompt memory
(4) the writing is not being read into or introduced into evidence. Its purpose is to prompt recollection only. The testimony of the witness once refreshed, is the evidence.

Question 34

Spousal Immunity

Answer 34

1) Only in crim cases
2) No confidential communication needed
3) Includes matters learned before marriage
4) After divorce, can testify to matters learned before or during marriage
5) In Fed ct, witness-spouse has proviledge
6) Not foreclosed from testifying

Question 35

Confidential Communication

Answer 35

1) in civil AND criminal cases
2) Confidential communication needed
3) Does not include matters learned BEFORE marriage
4) After divorce, cant testify on matters learned during marriage
5) either spouse has privilege
6) Foreclosed from testifying

Question 36

Excited Utterance (FRE 803 b)

Answer 36

1) stmt made UNDER INFLUENCE of a startling event
2) the influence or stress causes the declarant to make the stmt
3) Identity of declarant is not required
4) Availability immaterial

Question 37

Dying Declaration (FRE 804 b)

Answer 37

1) stmt made under the influence of what declarant BELIEVES to be a life-threatening event
2) the influence or stress causes declarant to make the stmt
3) the stmt is made while the declarant BELIEVES she is about to die
4) Declarant unavailable